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Earl v. Saks & Co

Court of Appeals of California
Nov 4, 1949
210 P.2d 864 (Cal. Ct. App. 1949)

Opinion

11-4-1949

EARL v. SAKS & CO. SAKS & CO. et al. v. BARBEE. Civ. 17142, 17143.

Chas. L. Nichols, Ivan Miller, William R. Law and R. S. McLaughlin, Los Angeles, for appellant. Wright & Millikan, Loyd Wright, Herschel B. Green, Los Angeles, for respondents. Also Thomas D. Mercola, Beverly Hills.


EARL
v.
SAKS & CO.
SAKS & CO. et al.
v.
BARBEE.

Nov. 4, 1949.
Hearing Granted Dec. 29, 1949. *

Chas. L. Nichols, Ivan Miller, William R. Law and R. S. McLaughlin, Los Angeles, for appellant.

Wright & Millikan, Loyd Wright, Herschel B. Green, Los Angeles, for respondents. Also Thomas D. Mercola, Beverly Hills.

MOORE, Presiding Justice.

On April 4, 1947, appellant and respondent Earl together visited the store of respondent Saks and Company. While there appellant informed a salesman that he wished to purchase a fur coat for Mrs. Earl. The couple were shown a mink coat priced at $5,000. Appellant expressed a willingness to pay as much as $4,000 but no more. The salesman emphatically rejected the offer several times. While appellant was absent from the fur salon for a brief period Mrs. Earl informed the salesman that if the store would sell the coat for $4,000 to appellant she would pay the difference between $4,000 and the purchase price including taxes. Upon appellant's return his companion temporarily absented herself, whereupon the salesman sold the coat to appellant for $3,981.25 and appellant signed the sales slip. When Mrs. Earl returned a discussion arose about alterations of the coat. Appellant stated: 'It is no longer my coat, it is hers. I have given it to her, talk to her about it, make your arrangements with her. It is her coat, ask her. I have given her the coat, it is a gift to her, ask her.' Appellant then assisted Mrs. Earl to don the coat and they left the store together. On April 5th Mrs. Earl returned the coat to Saks for alterations and paid $916.30 in fulfilment of her agreement. On the next succeeding day appellant notified Saks not to deliver the coat to Mrs. Earl. On April 11 Saks offered to refund $916.30 to Mrs. Earl but she rejected the offer and demanded the coat.

On May 21, 1947 Mrs. Earl instituted an action against Saks for conversion of the coat. Saks denied the conversion, by cross complaint interpleaded appellant and prayed that Mrs. Earl and appellant be required to litigate the title and right possession of the coat. Appellant denied that he had purchased or received the coat, and alleged that the agreement between Mrs. Earl and Saks had been made without his knowledge or consent and had been fraudulently concealed from him. Thereafter, Saks sued appellant on the common counts for $3,981.25. Appellant raised the same defenses but in neither action asked affirmative relief. The cases having been consolidated for trial the facts were found contrary to appellant's claims and judgment was entered in the Earl case in favor of Mrs. Earl for the recovery of the coat, and in the Saks case judgment was entered against appellant for $3,981.25.

In the Earl case the findings having recited that appellant signed the sale slip evidencing his purchase of the coat, proceeded: 'Thereupon Saks and Company delivered said mink coat to the said A. K. Barbee who, in turn, and while at said store made a gift of and delivered possession of said mink coat to the said Mrs. Richard Earl; that ever since said date the said Mrs. Richard Earl has been and is now the owner of said mink coat and is entitled to possession thereof. That in said transaction there was no fraudulent concealment from said A. K. Barbee by said Saks and Company nor was Saks and Company guilty of any fraudulent conduct.'

Appellant contends that the quoted findings are not findings of fact but conclusions of law and as such are not supported by the evidence or prior findings; that 'if they are findings of fact, they are (a) findings of ultimate fact; (b) inconsistent with and contrary to the probative facts found * * * and (c) not supported by the evidence and must give way to the probative facts found. * * *'

It is a settled rule of practice that a finding as to ownership is a finding of an ultimate fact. In re Estate of Hill, 167 Cal. 59, 63, 138 P. 690; Gossman v. Gossman, 52 Cal.App.2d 184, 192, 126 P.2d 178. In the instant case there is no conflict in the evidence as to what the parties did and said, and the probative findings of the court are supported by the testimony of appellant, Mrs. Earl and the Saks salesman. From the undisputed facts as recited above the court properly found that the ownership of the coat passed by sale from Saks and Company to appellant and then by the latter's gift to Mrs. Earl. The finding of ownership is in no way contrary to prior findings as to the acts of the parties. Furthermore, appellant has failed to point out in what respect there is a conflict between the findings of facts other than by the bald assertion of inconsistency. Even assuming that the finding of ownership is a conclusion of law, it is in no way depreciated by having been included among the findings of fact. Gossman v. Gossman, supra.

By way of further specifications of error appellant asserts that there was no valid contract of sale between himself and Saks because it was procured by fraud, and because there was no meeting of the minds of the parties due to the secret agreement of Mrs. Earl with Saks and Company. No allegations of a substantial fraud on the part of Saks and Company were alleged and no proof of such fraud was made. The lady was a willing recipient of the coat with appellant's paying the $5,000. She desired the garment no less even if she should pay a part of the sale price. Appellant bought it for a gift. As such, its intrinsic worth was not depreciated by the fact that he could acquire it for $1,000 less than the sum at first demanded. It remained the same coat. In no actionable respect was appellant cheated. On the contrary, Saks' private agreement with Mrs. Earl enabled appellant to obtain the coat at a price he was willing to pay. Fraud is deception practised for the purpose of causing loss or hindrance to another; an artifice by which the interest of another is injured. The Oxford Dictionary. Saks' agreement with Mrs. Earl caused no detriment to appellant. All prior offers and counter offers had been rejected by the parties. No false representations were made to appellant by either Mrs. Earl or by the representative of Saks. The only statement made by Mrs. Earl during the negotiations was her promise to pay the $916.30. This she did. No representation was made by Saks and Company to appellant other than that he would be required to pay only $3,981.25 for the coat, which he voluntarily agreed to do by affixing his name to the sales slip.

Appellant's position would be otherwise if there had existed a confidential relationship between himself and Saks, requiring full disclosure of the company's dealing with respect to the coat. But such relationship did not exist. The parties stood at arm's length throughout their negotiations. Therefore the merchant was under no obligation to disclose its agreement with Mrs. Earl. Civ.Code, sec. 1710, subd. 3; Hobart v. Hobart Estate Co., 26 Cal.2d 412, 433, 159 P.2d 958; Fink v. Weisman, 129 Cal.App. 305, 311, 18 P.2d 961. Appellant testified that he would not have purchased the coat or signed the agreement of purchase had he known that Saks was selling it for more than the $4,000; he had offered that sum and he had no intention of entering into a joint purchase of said coat with Mrs. Earl. But his secret sentiment or purpose was not disclosed and was therefore not competent evidence. The court could have rejected it as self-serving, and immaterial. All that Saks knew was appellant's wish to purchase the coat for a sum not to exceed that which he agreed to pay. That the testimony of his undisclosed desire was uncontradicted is of no significance since in no degree does it affect or detract from the testimony which was adopted by the court and which furnishes abundant support for the judgment.

Appellant's final contention is that there was no valid gift to Mrs. Earl. The court determined that there was a gift and the testimony above quoted amply supports the findings. While either a gift or any other transfer of property may be avoided on account of its being induced by fraud there is no evidence here that any fraudulent representation, concealment or nondisclosure on the part of Saks and Company or of Mrs. Earl induced appellant to make the gift. In such circumstances the finding that appellant made a valid gift of the coat to Mrs. Earl is warranted by the evidence.

The judgments are affirmed.

McCOMB and WILSON, JJ., concur. --------------- * Subsequent opinion 226 P.2d 340.


Summaries of

Earl v. Saks & Co

Court of Appeals of California
Nov 4, 1949
210 P.2d 864 (Cal. Ct. App. 1949)
Case details for

Earl v. Saks & Co

Case Details

Full title:EARL v. SAKS & CO. SAKS & CO. et al. v. BARBEE. Civ. 17142, 17143.

Court:Court of Appeals of California

Date published: Nov 4, 1949

Citations

210 P.2d 864 (Cal. Ct. App. 1949)